Delaware § 2306 - Entry of judgment by confession.

§ 2306. Entry of judgment by confession.

(a) A judgment by confession may be entered by the prothonotary, either for money due or to become due, or to secure the obligee against a money contingent liability, or both, on the application by the obligee or assignee of a bond, note or other obligation containing a warrant for an attorney-at-law or other person to confess judgment.

(b) A judgment by confession shall not be entered as a final judgment, effective in all respects as a judgment after trial, until the prothonotary gives written notice to the defendant-obligor by certified mail, return receipt requested, of an opportunity for a judicial determination as to whether the defendant-obligor understandingly waived his or her right to notice and an opportunity to be heard prior to the entry of final judgment against him or her.

(c) In the case of a defendant-obligor who was at the time of executing the document authorizing the confession of judgment, a nonresident, the plaintiff must also file with the prothonotary an affidavit executed by the defendant-obligor stating:

(1) The sum of money for which judgment may be entered;

(2) Authorization of entry of judgment in the Superior Court of the State in and for a specific county;

(3) The contact with the State in the transaction;

(4) Defendant-obligor’s mailing address and residence where he or she most likely would receive mail.

(d) The prothonotary shall send by certified mail, return receipt requested, a copy of the document authorizing the confession of judgment, the notice as aforesaid and, where applicable, a copy of the defendant-obligor’s affidavit provided for in subsection (c) of this section.

(e) When service cannot be effected by certified mail, return receipt requested, service shall be accomplished by the publication of said notice once per week for 2 weeks in a newspaper of general circulation in the county in which the judgment is sought to be entered and also once per week for 2 weeks in a newspaper of general circulation in the county in which the defendant-obligor is last known to have resided.

(f) Prior to the issuance of any writ of execution sought on a confessed judgment entered prior to July 9, 1971, the prothonotary shall serve on the defendant-obligor by certified mail, return receipt requested, or in the event of failure of service in that manner, by publication as heretofore provided, the notice as provided for in subsection (b) of this section. If the defendant-obligor appears to contest the judgment, the appearance shall be noted and in the case of nonresidents, the appearance shall constitute the appointment of the prothonotary as the defendant-obligor’s agent to receive service. If the prothonotary acts as the agent of the defendant-obligor to receive service, the prothonotary must immediately forward to the defendant-obligor by certified mail, return receipt requested, all such service he or she receives, pursuant to the provisions of this section or the rules of court. Thereafter, the issues shall be joined on the question of the indebtedness and the question of whether there was an understanding waiver of notice and an opportunity to be heard prior to judgment having been entered against the defendant-obligor. At the hearing on the issues, if plaintiff prevails, the lien of the plaintiff’s judgment shall relate back to the date of its original entry.

(g) At the conclusion of the hearing provided for in subsection (b) of this section, if the plaintiff prevails on the issue of whether the defendant-obligor understandingly waived notice and an opportunity to be heard prior to the entry of judgment against him or her, then judgment shall be entered by the prothonotary pursuant to this section as of the date the confessed judgment was originally lodged with the prothonotary.

(h) In addition to the procedure herein set forth, the Superior Court may adopt rules for confession of judgments by defendant-obligor in open court; provided, however, the debtor is afforded a judicial determination on the question of whether he or she has understandingly waived any of his or her constitutional rights concerning the entry of judgment and the right to execution thereon.

(i) The Superior Court may adopt appropriate and specific rules to effectuate the intent and purpose of this section.

(j) Notwithstanding the opportunity for hearing provided in subsection (b) of this section above the defendant-obligor will not be deemed to have waived the right to present defenses of which he or she had no knowledge at the time he or she signed the instrument containing a warrant of attorney to confess judgment, or which arose subsequent to the signing of such instrument. A stay of execution shall be automatically given on all judgments entered hereunder until the defendant-obligor is afforded an opportunity for hearing to present those defenses not deemed to have been waived. Prior to execution the prothonotary shall serve notice to the defendant-obligor in the manner above provided for residents or nonresidents as the case may be, and such notice shall include a warning that defendant-obligor’s property will be seized and sold or his or her wages attached on failure to appear.

Code 1852, §  674;  Code 1915, §  3768;  Code 1935, §  4290;  10 Del. C. 1953, §  2306;  58 Del. Laws, c. 240, §  1;  70 Del. Laws, c. 186, §  1;